NEWS

On 16 April 2018 the Minister of Immigration, Refugees and Citizenship announced an update to the policy regarding medical inadmissibility under Canada's Immigration and Refugee Protection Act. The changes that will come into effect on 1 June 2018 will enable more applicants for permanent residence to be approved even if they have a medical condition or disability that may have previously rendered them inadmissible to Canada because of “excessive demand” on the Canadian health care and social services system.

In November 2017 I wrote in depth about the requirement for all applicants for immigration to Canada to undergo medical examinations. Some classes of immigration such as spousal sponsorship or refugees are exempt from medical inadmissibility regulations. However, for many applicants, if the applicant or any accompanying family member has a medical condition that “may cause excessive demand on existing social or health services provided by the government” they can be found medically inadmissible. The threshold for “excessive” demand was set at $6,655 per year (based on 2017 figures), meaning if the officer determined that an applicant would require care and social services in excess of this amount they would be deemed medically inadmissible.

However, this approach has long been criticized as being out-of-date and out-of-touch with Canada's current approach to inclusion and disabilities. Annually approximately 1,000 applicants are denied immigration to Canada because of medical inadmissibility, with at least a quarter of these being families that have children who require special education services that will cost more than the minimum threshold. This means hundreds of applicants are refused each year under the provision because they or their children have a health condition or disability that can be accommodated by Canadian society.

The new policy that will be effective as of 1 June will make two important changes:1- it will increase the minimum threshold considerably to $19,965 per year (based on 2017 figures), and2- it will change in the definition of “social services” so as to remove references to special education, social and vocational rehabilitation services and personal support services that an applicant may need in Canada.

The aim of this new policy on medical inadmissibility is to better balance the need to protect publicly funded health and social services with Canada's commitment and views on the inclusion of all persons, including those with disabilities.

To make this policy a reality, the federal government is making important administrative changes including creating a centralized office to make decisions regarding medical inadmissibility, ensuring that information on procedures and requirements are presented in plain-language and that the decision makers and medical officers have updated training to support these changes.

The federal government has been reviewing medical inadmissibility since 2016. However these changes will likely not be the last development in this area. The Standing Committee on Citizenship and Immigration recommended the full elimination of the medical inadmissibility policy and the federal government is collaborating with the provinces and territories to make this recommendation a reality.

The results of the 2018 Parent and Grandparent (PGP) Sponsorship lottery were announced beginning on 19 March 2018 and thousands of families across Canada received good news emails inviting them to submit applications to sponsor their parents or grandparents.

In 2017 Immigration, Refugees and Citizenship Canada (“IRCC”) introduced a new “lottery” system to select applicants to fill its quota of 10,000 applications. In 2017 more than 95,000 people registered with IRCC and while the 2018 numbers have not been released it will be at least the same if not more than last year.

If you are one of the lucky families that has been selected to submit a PGP sponsorship application you must act fast as applicants only have 60 days to submit a complete application.

Check your email (including your spam folder) or use the confirmation number to look up if you were selected online

Ensure that you meet the eligibility criteria (refer to my previous articles available on the Salam Toronto website) and if there are any questions regarding your eligibility you should speak with an immigration lawyer immediately

Gather all the required documents for yourself and your parents – whether you are applying for yourself or with the assistance of a representative, it is extremely important that your application is complete and meets all the requirements. I have unfortunately seen applications returned for missing a single check mark or photograph so it is imperative that you submit a complete application

While the key requirement for PGP sponsorship applications is the minimum necessary income you must show as the sponsor there are often complex questions that arise. In order to meet this income requirement, you can combine your income and that of a co-signer for the past three years. The co-signer can be your spouse or common-law partner. The co-signer must also be eligible to sponsor and co-sign the undertaking of support for the period of 20 years. What happens if the number of people in your family changes (you become married or a child) during the three years that you have to show income? What if you lose the support of your co-signer as part of the application? In these cases you should consult with an immigration lawyer as soon as possible to ensure that you are able to submit a successful application.

The amount of income you must have depends on the size of your family and the number of people you are sponsoring. For example, if you are a family of three sponsoring both your mother and father, you (along with a potential co-signer) need to show income of at least $65,377 in 2015 and $66,654 in 2016, and $67,400 in 2017. This amount varies based on the number of people in your family and those being sponsored. Your income over the three year period is verified based on proof of income from the Canada Revenue Agency.

Given the short period of time you have to submit your application you should try to submit your PGP application as soon as possible. If you were not lucky enough to receive an invitation do not give up and keep your confirmation number: last year not all the people who were selected in the first round submitted their applications and there was a second round announced in August 2017.

Immigration laws and regulations determine the requirements to enter and the process for applying for temporary and permanent visas. They also set out the class of applicants who are not allowed to enter Canada even if they otherwise qualify as a permanent immigrant or temporary worker, student or visitor. These are people who are deemed “inadmissible” under Canada's immigration laws and are not normally allowed to enter Canada.

What is inadmissibility?You may be found to be inadmissible to Canada for a number of reasons. The top 5 reasons that you may be inadmissible are:

Medical inadmissibility: you have a serious health problem

Criminal inadmissibility: you have been convicted of a crime, or you have committed an act outside Canada that would be a crime

Security inadmissibility: you are a security risk, have committed human or international rights violations, have ties to organized crime

Financial inadmissibility: you have a serious financial problem

Misrepresentation inadmissibility: you lied in your application or in an interview

You may also be found to be inadmissible if one of your family members in your application is inadmissible for any of the above reasons.

How to know if you are inadmissible?Whether you are inadmissible depends on your specific circumstances, but the place to start is to ask yourself if have you might fall under any of these categories:

Have you been convicted of a criminal offence, inside or outside Canada?

Do you have a medical condition that requires significant medical treatment?

Do you have sufficient financial resources to support yourself (and in some cases your family members)?

Have you lied or misrepresented information to the Government of Canada?

If the answer to any of these questions is yes, you may be inadmissible. The facts of your case will be different from that of any one else and you should be careful not to make a decision based on the experience of your family and friends. You should consult a lawyer to determine if you have an actual or potential inadmissibility and what the best course of action is to deal with the inadmissibility.

Can you overcome inadmissibility to Canada?As part of the process of being assessed for entry to Canada, either for permanent (immigrant) or temporary entry (tourist, student or worker), all applicants have to satisfy the officer that they are not inadmissible and should be allowed into the country. The implication of being found inadmissible is that you will normally not be allowed to enter Canada. However, it is sometimes possible to overcome inadmissibility either by demonstrating that you have become rehabilitated or that appropriate time has passed since the event that made you inadmissible. In some circumstances you may have a valid reason to travel to Canada, in which case you may apply for a Temporary Resident Permit. In other, more complicated cases you may be have recourse by turning to the Immigration and Refugee Board or the Federal Court.

In the coming weeks I will be writing about the different types of inadmissibility and options you may have to overcome them and be allowed to enter Canada.

Over the last few weeks I have written about the legal obligations of PRs and maintaining your PR status. However, what are your appeal rights if a negative decision is made with regards to your PR status, either in Canada or at a Visa office abroad?

When and How to Appeal a Negative DecisionIf a negative decision is made with regards to your PR Card renewal application and you are in Canada, you will be issued with an order to leave Canada. You have 30 days after you receive the negative decision to file an appeal with the Immigration Appeal Division (“IAD”). You cannot be removed from Canada during these 30 days and if you file an appeal you cannot be removed until a decision is made with respect to your appeal.

If a negative decision is made outside of Canada by a visa officer that you have lost your PR status, you have 60 days to appeal the decision to the IAD. If you would like to attend your hearing at the IAD, you may be able to apply for a travel document from the IAD. The IAD has the power to order that you be allowed to return to Canada to attend your hearing if you prove that it is necessary.

Filing an Appeal & Preparing for your HearingWhile it is possible to represent yourself in your appeal, this is a complicated legal process and the consequence of the final decision is that you may lose your PR status and be removed from Canada. Filling the form to register your appeal is a simple step but preparing your appeal and defending yourself at your hearing is anything but simple. I often meet appellants who come to me after their appeal has been refused, but at that point it is very difficult for us to change the decision. Therefore if you have an appeal you should ensure that you work with your counsel to make the strongest case possible and present all your evidence at your appeal hearing.

Depending on where you are, current wait times from receiving a hearing date range from 12 to 18 months. It is important to know that your ultimate chance of being successful in your appeal depends in part on what you do after your appeal is filed. Do you remain in Canada and become more established and committed to making Canada your permanent home? For example if you were not in Canada 730 days, remaining in Canada from the time you file your appeal up to your hearing date, and taking steps to become established, will assist you in proving that there are adequate Humanitarian and Compassionate grounds in your case.

It is crucial that you are well prepared for your hearing and file all documents you intend to rely upon within the set deadlines of the IAD. In some cases there are relevant witnesses that we want to bring to the hearing to support your appeal. Your appeal is your chance to present all your evidence to the IAD but it is also your last chance to present evidence. After your hearing you will not be able to present any new documents or information and your appeal will be decided based on the existing evidence.

Residency obligation appeals involve two parties: you and the Minister of Immigration’s counsel. You will be able to present all the relevant evidence and the Minister's counsel will have a chance to cross-examine you. You should also be prepared for the Minister's counsel to fight against your case and argue why you should not be allowed to remain a PR of Canada.

Possible OutcomesOnce your hearing has taken place you are faced with two possible outcomes. The IAD may grant your appeal based on legal grounds (for example the calculation of the number of days you were in Canada was incorrect), or on humanitarian and compassionate grounds (these grounds were discussed in depth in my article last week). Or if the IAD does not agree with your appeal they may hand down a decision where you lose your PR status and a departure order is issued against you. A decision of the IAD may be appealed to the Federal Court of Canada (by either party).

If you end up losing your PR status you will need to apply for a visa before travelling to Canada. Should you wish to become a PR again, you will need to qualify under one of the existing programs and submit a new application and start all over again.​

Last week I wrote about the residency obligation of Permanent Residents (“PRs”) to retain their status in Canada. What if there were special circumstances that prevented you from being able to meet your residency obligation? You may still be able to retain your PR status as the Immigration and Refugee Protection Act (“Act”) provides flexibility to officers to consider r humanitarian and compassionate (“H&C”) considerations related to your personal circumstances and in exceptional cases allow you to retain your PR status.

When making a PR Card or PR Travel Document application based on H&C grounds, you must be able to explain and prove the extenuating circumstances that prevented you from fulfilling the physical residence requirements. You may be allowed to maintain your PR status if the officer is satisfied that you have sufficient H&C grounds to justify your absences from Canada.

What are “Humanitarian & Compassionate” Considerations?H&C grounds are factors that demonstrate why you have a compelling reason for not being able to remain in Canada for 2 out of 5 years needed to maintain your PR status. The Act does not provide an exhaustive list of H&C grounds and each application is assessed based on your unique circumstances. The following are some of the factors that may be reviewed when considering H&C grounds:

Extent of your non-compliance with the residency obligation: How many have you been physically in Canada during the past 5 years? Did you or a close family member have a medical condition that required attention outside Canada and why could the medical condition not be treated in Canada?

Circumstances beyond your control for not coming to Canada: Were there compelling circumstances, outside of your control, that led to you remaining outside of Canada? Did you return to Canada at the earliest possible opportunity? Did you leave Canada as a child while accompanying your parents?

Your establishment in and outside Canada: Are you a permanent resident or citizen of a country other than Canada? What steps have you taken to establish in Canada permanently? What steps have you taken to sever ties with your country of origin? What linkages and ties have you maintained in Canada?

Your current presence and the degree of consequential hardship if you lose your PR status: If you lose your PR Status will you have to voluntarily leave or be removed from Canada? What hardship will you or close family members face if you lose your PR status?

The immigration authorities will also consider the best interests of any child affected by the decision as being a potential H&C factor. For example, in the case of a father who has not met his residency obligation but his dependent children live in Canada the best interests of his children will be considered if they will be deprived of a relationship with him if he loses his PR status.

When can you introduce H&C grounds?If you believe that there are sufficient H&C grounds in your case, you will have to provide explanations and documents to demonstrate these grounds as part of your PR Card renewal or PR Travel Document application. You can also provide evidence of H&C grounds if you are required to complete a residency questionnaire or are invited to an interview.

Officers are required to consider all the information and documents that you present in your application. However, they do not have an obligation to ask you for additional information and so the onus is on you to prove your case. Overall, your application must prove that (i) there are compelling H&C factors in your individual circumstances that justify retention of your PR status, (ii) why you were not able to comply with the residency obligation, and (iii) the extent of any hardship that the loss of PR status will cause you and your family members directly affected by the decision.

When an officer determines that H&C considerations relating to a permanent resident justify the retention of permanent resident status, this determination will overcome any breach you have of the residency obligation and you can retain your PR status.

Discretion of officersIf you do not meet the residency obligation and do not fall into one of the exceptions, there is no guarantee that the H&C grounds will be sufficient for you to retain your PR status. There are many cases where PRs have travelled to work overseas because they were not able to find suitable employment in Canada, but unfortunately this is not a sufficient ground for the exercise of this discretion. A positive decision on H&C grounds is an exceptional response to a particular set of circumstances.

Ultimately, a positive decision in such circumstances turns on the discretion of the officer and it is your responsibility to ensure that you are fully informed about the law and your situation and present the most complete and compelling case possible.

Coming Next: Right to AppealNext week I will be exploring the your appeal options in case of a negative decisions with regards to your PR status in Canada. ​

Note: This information is not intended as legal advice or opinion. You should always seek specialized legal advice with regards to your situation as the facts of each case are unique and the application of law varies in every case.